This working paper presents an analysis of how people in Canada move from relatively secure, but largely temporary immigration status, to less secure status, including illegality. The authors build on recent work to theorize the production of illegality and precarious status in Canada.

Contents

Overview

The discussion centres on four themes, which make up the main sections of the paper:

Theorizing Illegality and immigration status: different contexts and scholarship - a proposed framework for analyzing the production of migrant illegality and precariousness.

The Production of Illegality in the Canadian Context - an overview of related Canadian immigration policy and trends.

What is New or Significant in this Report?

Most of those considered to be without status at one point had legal immigration status and either lost it, overstayed visas, or ignored deportation orders. It is within this different-from-American reality that the authors outline the Canadian context, how it is different from some mainstream interpretations, and how understanding this difference is important to our sector.

At the same time, the authors suggest that the population with precarious status will likely grow.

It is useful to reference the authors' analysis that "immigration (and labour market) policy has shifted toward greater use of temporary admissions, particularly temporary foreign workers." This has potential implications on the immigrant and refugee service sector, which does not typically reach out actively to people with temporary resident status. As well, we are starting to see a more visible public discussion of these issues (see the recent Windsor border, Mexican refugee media coverage).

Is it important that better definitions, more concrete understanding and more active service models be created and implemented to address this growing reality?

Pathways to Secure Status, pathways to Precarious Status - a detailed description and analysis of modes of entry into Canada and pathways to various forms of less-than-full-status.

The focus here is mainly on those considered "temporary residents." The authors use Citizenship and Immigration Canada's division of temporary residents, which includes four categories, depending on their primary motivation: foreign workers, foreign students, humanitarian cases (refugee claimants and those granted residence on humanitarian and compassionate grounds) and other cases.

Precarious Status, Precarious Access to Services and Social Exclusion - implications of precarious status through a discussion of access to social services.

Background

Media and most of society understand this issue in either/or American terms, where unauthorized border crossing is the main pathway to unlawful status. In this view, people either have legal or illegal immigration status. The authors outline how the situation is not the same in Canada.

In Canada, the authors assert, we have "a confusing array of gradations of uncertain or 'less than full' immigration status, and movement between them... Once in Canada, people may move out of relatively secure but largely temporary statuses to less secure statuses, including illegality." They propose "an alternative conceptualization and use precarious legal status to describe multiple forms of irregular or 'less than full' legal statuses... While temporary residents (temporary workers, students, visitors and refugee claimants) are particularly vulnerable to losing status, sponsorship breakdown may also lead some applicants for permanent residence - particularly women - to lose status."

The authors "call for a different vocabulary and conceptualization of immigrant legal status that does not simply categorize legal immigration status as those with and those without."

They also suggest that it is important for all stakeholders, including community agencies, to better understand the complexity and confusion of precarious legal status in Canada, in order to better address the "vulnerability and marginalization of people with precarious status and their families" that represent "an underclass that is vulnerable on several fronts, including inadequate access to health and other services, limited recourse in the event of abuse at work or other arenas, and deportation."

Discussion

According to the authors, the term Precarious Status best conceptualizes the Canadian situation.

"It is important to understand both how people end up in various situations of precarious immigration status, and that then, depending on the pathway to precarious status and their location and possible contact with various service organizations, they may have access to a few, not all, public services. That is, there is not one unitary gray area... between legal and illegal. Rather, there are multiple of shades of gray."

The authors suggest that Canadian policy routinely produces various forms of irregular status and documented illegality and that the question remains as to how best to understand the forms of less than full status. They also suggest that there is a strong similarity between the Canadian context and characterization of Spanish immigration policy as irregularizing newcomers. For the authors it "becomes clear that instead of legally producing unambiguous illegality, Canadian policy produces a variety of complex immigration status situations, as well as documented illegality. This calls for drawing a distinction between documented and undocumented illegality."

The authors also assert that "precarious status and illegality are gendered and racialized processes" suggesting that this status disproportionately affects women and members of racialized communities.

Conclusions

Canadian immigration policy generates various forms of precarious immigration status, including illegality.

Precarious status is accompanied by precarious access to public services.

The production of precarious status and illegality is gendered and racialized, which requires further analysis.

Precarious legal status and illegality has implications for citizenship, stratification and social exclusion in Canada.

Trends in immigration and refugee policy indicate that the population with precarious status is likely to grow.

"For people with precarious status, identifying various forms of precarious status may be less relevant than the overall precariousness of their everyday lives. However, for scholars, activists, agencies and policy-makers, analyzing the production of precariousness in a specific national context can contribute to theorizing immigration status as a critical dimension of social exclusion, and to generating relevant and accurate knowledge on the topic."